In June, President Barack Obama called for action against patent trolls. Today the White House held a short conference updating what has happened in the arena of patent policy since then and announced new initiatives going forward—including one to "crowdsource" the review of patents.

"I don't think we felt like we had a choice but to take action on the issue of patent trolls," said Obama economic adviser Gene Sperling at today's event. "What we were seeing wasn't a trend upward [in patent threats], it was a hockey stick."

Sperling expressed hope that patents could be a "sweet spot" for bipartisan compromise and that a bill would make it to the president's desk. The Innovation Act, which includes fee-shifting and customer protection measures for patent lawsuits, has passed the House and is being debated in the Senate.

Multiple speakers noted that the president had mentioned "costly, needless" patent litigation in his State of the Union address, and that the issue still has his attention.

Today's statement and conference didn't add too much detail about the crowdsourcing idea. The statement generally suggests that "companies, experts, and the general public" be involved in the "determination of whether an invention is truly novel." Commerce Secretary Penny Pritzker said the program would "encourage the innovation community to uncover and submit hard-to-find... prior art."

Tweaks to a system that only says “yes”

Currently, getting a patent is a one-on-one proceeding between the applicant and the examiner. Two pilot programs that allowed the public to submit prior art were only applied to a tiny number of patents, and in the first program, all the patents were voluntarily submitted by the applicants. Applying such scrutiny to a few hundred patents, out of the hundreds of thousands issued each year, isn't any kind of long-term solution.

Unless the crowd-sourcing initiatives were to put major new burdens on applicants—which would be resisted—the fundamentals of patent examination aren't going to change. Patent examiners get an average of eighteen hours to review a patent. Most importantly, examiners effectively can't say "no" to applicants. They can reject a particular application, but there's no limit to the number of amendments and re-drafts an applicant can submit.

"Continuation" applications allow tweaking and updating of claims that may have never been seriously tested. Continuations can be piled on, whether the original application results in a patent or not.

The other new initiatives involve increasing training for examiners and providing more pro bono legal assistance for inventors, as well as help for "pro se" applicants without a lawyer.

Another development responding to the president's requests is the USPTO's new "online toolkit," basically a government FAQ that answers common questions about patent suits and gives details about specific patents. The site provides information to consumers and companies; categories on the just-launched site read "I've been sued...", "I got a letter," "About patents," and "About patent infringement." The FAQ mostly avoids the really bad news, like the fact that the cost of fighting off a single assertion is likely to cost multiple millions of dollars.

"The toolkit will include information and links to services and websites that can help consumers understand the risks and benefits of litigation or settlement and pick their best course of action," according to the statement. "Consumers and citizens who face litigation should understand their rights and get what they need."

Other USPTO updates:

It has proposed a rule that would require patent owners to provide accurate ownership information to the office when patents are granted and when a patent gets involved in USPTO proceedings after it's granted. The idea is to make "patent troll"-type entities disclose their true parent company or owner.

It has developed a training program to help examiners "rigorously examine so-called 'functional claims' to ensure claims are clear and can be consistently enforced. The USPTO will also launch a pilot program that uses glossaries in patent documents to promote clarity.

It is also reviewing the standards used when the International Trade Commission issues exclusion orders.

The developments show that the White House is maintaining a high level of interest in changing the patent system. But it also highlights the limits of what can be done in this area by the executive branch alone.

This doesn't fix the problem at all just seems to shift the blame from USPTO onto others. Why not actually make evidence of prior art and obviousness actually hold weight in a court case. That seems to be the problem with trolls, the fact they were granted a piece of paper by the USPTO is more important than the actual evidence on hand.

This doesn't fix the problem at all just seems to shift the blame from USPTO onto others. Why not actually make evidence of prior art and obviousness actually hold weight in a court case. That seems to be the problem with trolls, the fact they were granted a piece of paper by the USPTO is more important than the actual evidence on hand.

Not only that, but the onus is currently on the accused to prove they didn't infringe a patent, rather than on the accuser to prove the accused did in fact infringe.

Let us also not forget that allowing software and business method patents has been the biggest cause of this increase nonsense patent litigation.

Stop issuing software and business method patents or make the bar higher. The USPTO is under the Commerce Department. Obama has already said he'll work around Congress as necessary. So take action and don't let the USPTO continue to make the situation worse. If Congress disagrees, force them to legislate those patents into existence.

Microsoft tried to patent "keeping things the same physical size regardless of screen resolution". I'm glad this kind of crap got thrown out. I'm not glad they thought they could get it patented in the first place.

This doesn't fix the problem at all just seems to shift the blame from USPTO onto others. Why not actually make evidence of prior art and obviousness actually hold weight in a court case. That seems to be the problem with trolls, the fact they were granted a piece of paper by the USPTO is more important than the actual evidence on hand.

Not only that, but the onus is currently on the accused to prove they didn't infringe a patent, rather than on the accuser to prove the accused did in fact infringe.

No, it isn't. The burden of proof is on the patent owner to show infringement. The sole case of that not being the case was recently overturned by SCOTUS.

Ask Patents is, in fact, was designed and launched with the collaboration of the USPTO. Unfortunately, the amount and quality of useful art that is generated, in my experience, has been very lacking. With a few exceptions -- and even in those, I'm not convinced prosecution would have proceeded significantly differently without Ask Patents -- responses are of the "that's obvious" (with no factual backing), "I used the same system back in 1980" (with no evidence) or "this is the same thing" (where there are clear and significant differences, often pre-emptively pointed out in the original post).

Of course, the other issue with Ask Patents, beyond the quality/quantity of participants, is the reactive nature of the site. Either a USPTO examiner makes a request when working on a case and gets responses days or weeks later (bearing in mind that an examiner has about eight to sixteen hours* to work on a case) or an anti-patent watchdog happens to arbitrary come across a patent application publication that they feel is outrageous and initiates proceedings (which may not be representative of the application's current status or may be useless as the examiner is easily able to reject the claims without help).

18 hours per patent examine is a big problem. A knee jerk solution is to charge more for patents to boost the number of examiners. The downside is this hurts the individual inventor and the small company. You could have a fee structure that increases based on the number of patents filed in the previousv18-24 for months, for example. However that may still disenfranchise the small inventor.

What I am getting at is we need a way to extract a greater sum of money from companies who benefit greatly from the patenting of ideas while not stifling and limiting the small and individual inventor.

The USPTO already charges small entities substantially less (50%) than larger entities, and "micro" entities even less than that (25%). The "size" of an entity is determined on the basis of both wealth/income and number of previous patent applications.

(And it's a lot less than 18 hours per patent examined, if we're talking averages.)

Yeah until patent examiners have more resources to make decisions, giving them more information will not change anything.

Although I do wonder what happens if the default answer for a patent shifted from yes to no. Would it have a chilling effect on advancement? Or would it require more concise and well developed patent applications to be accepted?

That would be a tremendous change in US patent law. Currently the statutes are written so that every inventor is entitled to a patent on their invention unless the Patent Office can prove that they fail one or more statutory tests.

Notably the European Patent Office, as well as several other foreign offices, still has a default "yes", but also has a much lower bar on the quality of evidence that examiners must provide, particularly to demonstrate obviousness, therefore making it harder to obtain patents (or easier to reject patents, depending on your point of view). There are many instances where an EPO examiner will simply summarize USPTO examiner's rejection of a corresponding case, which will be enough to cause the applicant to abandon the case at the EPO even though the applicant will continue prosecution in the US by arguing against that original (more detailed) rejection.

18 hours per patent examine is a big problem. A knee jerk solution is to charge more for patents to boost the number of examiners. The downside is this hurts the individual inventor and the small company. You could have a fee structure that increases based on the number of patents filed in the previousv18-24 for months, for example. However that may still disenfranchise the small inventor.

What I am getting at is we need a way to extract a greater sum of money from companies who benefit greatly from the patenting of ideas while not stifling and limiting the small and individual inventor.

The patent examiner already has more prior art available than can reasonably be reviewed. A deluge of additional public-supplied prior art will just compound the needle in the haystack challenge.

Yeah until patent examiners have more resources to make decisions, giving them more information will not change anything.

Although I do wonder what happens if the default answer for a patent shifted from yes to no. Would it have a chilling effect on advancement? Or would it require more concise and well developed patent applications to be accepted?

Microsoft tried to patent "keeping things the same physical size regardless of screen resolution". I'm glad this kind of crap got thrown out. I'm not glad they thought they could get it patented in the first place.

I don't think it got thrown out, they just narrowed the claims and on those now they have to fight on as well.

18 hours per patent examine is a big problem. A knee jerk solution is to charge more for patents to boost the number of examiners. The downside is this hurts the individual inventor and the small company. You could have a fee structure that increases based on the number of patents filed in the previousv18-24 for months, for example. However that may still disenfranchise the small inventor.

What I am getting at is we need a way to extract a greater sum of money from companies who benefit greatly from the patenting of ideas while not stifling and limiting the small and individual inventor.

There's not much need to concern yourself with garage inventors, because they are more or less non-existent. Outside of perhaps 'As seen on TV' garbage, inventions tend to happen in incremental steps as designs pass from one party to another to another. The exceptions tend to be by accident.

The number of patents granted dwarfs the number of patents actually used as weapons. Most of them are used as a defensive position. "Yeah, try suing us. I'm sure there's something in our portfolio of 5000 patents that we can find to make trouble for you." But the trolls are not affected by this, hence the problem.

So instead of crowdsourcing the approval, why not make a crowdsourced review required before any patent litigation can start? Or even before you can threaten litigation?

I realize it would be better to not approve a bad patent in the first place, but the volume of patents is overwhelming. This seems like it might have a beneficial effect without throwing the whole system for a loop.

Isn't there an international patent and trademark organization? If US companies and trolls are using their system to impose penalties and punishments on others, especially those with prior art (just not in the US), shouldn't there be an international organization to handle on a global scale? US law does not apply to the 97% of the world.

Isn't there an international patent and trademark organization? If US companies and trolls are using their system to impose penalties and punishments on others, especially those with prior art (just not in the US), shouldn't there be an international organization to handle on a global scale? US law does not apply to the 97% of the world.

*laughs* You must be new here. That would make far too much sense overall. No country wants to give up their ability to control their system, though.

The number of patents granted dwarfs the number of patents actually used as weapons. Most of them are used as a defensive position. "Yeah, try suing us. I'm sure there's something in our portfolio of 5000 patents that we can find to make trouble for you." But the trolls are not affected by this, hence the problem.

So instead of crowdsourcing the approval, why not make a crowdsourced review required before any patent litigation can start? Or even before you can threaten litigation?

I realize it would be better to not approve a bad patent in the first place, but the volume of patents is overwhelming. This seems like it might have a beneficial effect without throwing the whole system for a loop.

I'd guess that placing an additional test to threaten litigation would be taken as a violation of constitutional free-speech provisions.

On a somewhat related note, the Japanese Patent Office filing procedure allows a three year period after filing an application for the applicants to decide if they really want the application to be properly examined (i.e., if the applicants decide that the invention is not worth the cost of prosecution). This reduces the number of applications that are fully examined, although I do not have statistics to show the efficacy of such a system.

Isn't there an international patent and trademark organization? If US companies and trolls are using their system to impose penalties and punishments on others, especially those with prior art (just not in the US), shouldn't there be an international organization to handle on a global scale? US law does not apply to the 97% of the world.

There's the World Intellectual Property Organization. I'm not sure what you're asking, however -- US patents have no force internationally and are therefore not enforced internationally. I'm unaware of any examples of behavior to the contrary.

This doesn't fix the problem at all just seems to shift the blame from USPTO onto others. Why not actually make evidence of prior art and obviousness actually hold weight in a court case. That seems to be the problem with trolls, the fact they were granted a piece of paper by the USPTO is more important than the actual evidence on hand.

There's no reason not to do both. If I'm on a jury and the invention seems obvious or the defense presents credible evidence of prior art, there's no way I'm voting for damages to the plaintiff, no matter what a judge says.

Isn't there an international patent and trademark organization? If US companies and trolls are using their system to impose penalties and punishments on others, especially those with prior art (just not in the US), shouldn't there be an international organization to handle on a global scale? US law does not apply to the 97% of the world.

*laughs* You must be new here. That would make far too much sense overall. No country wants to give up their ability to control their system, though.

Effectively, a US Patent or a European Patent will block a product from being made, because nobody wants to make a product that can't be sold in those markets.

Unless the crowd-sourcing initiatives were to put major new burdens on applicants—which would be resisted—the fundamentals of patent examination aren't going to change. Patent examiners get an average of eighteen hours to review a patent. Most importantly, examiners effectively can't say "no" to applicants. They can reject a particular application, but there's no limit to the number of amendments and re-drafts an applicant can submit.

If by major you mean giving more review time, the ability to say "no" based off of facts (i.e. common-use, already a patent, etc) or only allowing so many amendments I'm good. I don't like patent trolls, and think they are low-life scum.

However, I would say be wary of too many "new burdens". All that will do is to squeeze out the little guy and allow the big corporations a big advantage over the patent process. Reform it by all means, but don't go too far.

So instead of crowdsourcing the approval, why not make a crowdsourced review required before any patent litigation can start? Or even before you can threaten litigation?

So if I'm a small time guy who the Super Widget and MegaMax Corp. uses my invention and won't pay me royalties, I've got to wait for a bunch of third parties who have no interest in the Super Widdget to voluntarily out of their innate goodness and human decency to review my patent before I can get my case heard? Are you fucking kidding me?

Isn't there an international patent and trademark organization? If US companies and trolls are using their system to impose penalties and punishments on others, especially those with prior art (just not in the US), shouldn't there be an international organization to handle on a global scale? US law does not apply to the 97% of the world.

*laughs* You must be new here. That would make far too much sense overall. No country wants to give up their ability to control their system, though.

Effectively, a US Patent or a European Patent will block a product from being made, because nobody wants to make a product that can't be sold in those markets.

So instead of crowdsourcing the approval, why not make a crowdsourced review required before any patent litigation can start? Or even before you can threaten litigation?

So if I'm a small time guy who the Super Widget and MegaMax Corp. uses my invention and won't pay me royalties, I've got to wait for a bunch of third parties who have no interest in the Super Widdget to voluntarily out of their innate goodness and human decency to review my patent before I can get my case heard? Are you fucking kidding me?

Far more often, it would allow the small guy to not have the pants sued off of them by MegaMax Corp, which is a far more important concern.

Most importantly, examiners effectively can't say "no" to applicants. They can reject a particular application, but there's no limit to the number of amendments and re-drafts an applicant can submit.

"Continuation" applications allow tweaking and updating of claims that may have never been seriously tested. Continuations can be piled on, whether the original application results in a patent or not.

But let us not forget every time there is a request for continued examination or a continuation, there is a fee associated. The filing fee for an RCE alone is 1,200-1,700 for large entities. That doesn't include the substantial attorney fees associated with drafting a response to the final rejection.

All the while the clock is ticking against the patent. The longer prosecution takes, the less valuable the application becomes because the patent owner can only enforce the patent 20 years from the priority date.

Bottom line, it's not cheap to keep prosecuting a patent after a final rejection, which results in many applications going abandoned because of the costs.

So instead of crowdsourcing the approval, why not make a crowdsourced review required before any patent litigation can start? Or even before you can threaten litigation?

So if I'm a small time guy who the Super Widget and MegaMax Corp. uses my invention and won't pay me royalties, I've got to wait for a bunch of third parties who have no interest in the Super Widdget to voluntarily out of their innate goodness and human decency to review my patent before I can get my case heard? Are you fucking kidding me?

Far more often, it would allow the small guy to not have the pants sued off of them by MegaMax Corp, which is a far more important concern.

Don't forget, also, that these "rights" are not inherent. They are granted for the good of society. If you start interfering with that good, then you need to be slapped down.

It seems that only "fixing" patents by changing the conditions of their issuance is on the table. I smell an elephant in the room.

Apparently no-one seems to think that patents are perhaps overvalued in our society, and by slowly reducing their value we can starve the beast, instead of just ineffectively yelling at it to stop eating our children.

For example, software patents could be given a term of only 5 years. For example, limiting the damages which can be awarded for patent infringement. For example, automatically stopping all forms of patent extension (including classifying all derivations as, well, derivative and obvious). These are just off the top of my head. Some actual thinking might come up with many more and better ways to still have patents, but reduce their value.

As long as people can make lots and lots of money by having patents, there will be the motivation to game the system. We need a system which affords truly new inventions protection while the inventors capitalize on them, but only just enough and no more.

In my experience, it is rare that the idea of a patent is actually copied from someone who read the patent, or saw it in the inventor's product. Almost always it is independent invention of the same (somewhat obvious) idea from different people.

If it was possible to eliminate this situation from litigation, most of the problems would be solved.

Unfortunately it is always easy for someone to claim they independently invented something, so this may be unworkable.

Your title is misleading. They arent suggesting crowdsourcing patents. It is the determination of whether it is a valid patent that may be crowdsourced. The way you titled it it sounds like they were nationalizing all patents.

This doesn't fix the problem at all just seems to shift the blame from USPTO onto others. Why not actually make evidence of prior art and obviousness actually hold weight in a court case. That seems to be the problem with trolls, the fact they were granted a piece of paper by the USPTO is more important than the actual evidence on hand.

Not only that, but the onus is currently on the accused to prove they didn't infringe a patent, rather than on the accuser to prove the accused did in fact infringe.

No, it isn't. The burden of proof is on the patent owner to show infringement. The sole case of that not being the case was recently overturned by SCOTUS.

Except for, ya know, MPHJ. Which claim if you're a business of a certain size, you must infringe their patent on scan to e-mail, because 99% of everybody does.

In the MPHJ declaration, which Ars has obtained a copy of, a representative of the target company must swear under penalty of perjury that the company doesn't use any equipment that scans a document to e-mail and then transmits it over a network. If that statement proves to be false, the company agrees to a "consent judgment" in the amount of $1,200 per employee.

Remind me who the onus is on again? Because last I checked, the cases regarding MPHJ's suits haven't seen discussion in the Supreme Court of the US. They've been challenged by AG's at the state level, and MPHJ has even sued the government. But no Supreme Court ruling here.

But thanks to patents like this - and especially business method patents like, "hey I patented a digital shopping caret - pay up bitches". Yes, the accused still has the burden of proving they don't infringe, because the patent system is horribly broken and allowing patents with no clear process description for the patent.

Except for, ya know, MPHJ. Which claim if you're a business of a certain size, you must infringe their patent on scan to e-mail, because 99% of everybody does.

I really don't understand how that statement didn't torpedo the patent. I mean, seriously, he's saying that making a scanner with scan to e-mail isn't infringing, it's only when it's also hooked up to a network. And he's saying that 99% of businesses over a certain size are infringing.

That means he's admitting that 99% of businesses independently invented his invention. Which means "height of obviousness"

Quote:

•It has proposed a rule that would require patent owners to provide accurate ownership information to the office when patents are granted and when a patent gets involved in USPTO proceedings after it's granted. The idea is to make "patent troll"-type entities disclose their true parent company or owner.

I also don't understand why this wasn't already true. The whole point of patents was to ensure the owner gets to exclusively benefit from their invention for a set period of time, at the cost of revealing the invention to the world. So how can they do that without the owner actually being disclosed? It makes no sense. (plus that whole "right to face your accuser" thing, or is that just criminal law and not civil law?)

Microsoft tried to patent "keeping things the same physical size regardless of screen resolution". I'm glad this kind of crap got thrown out. I'm not glad they thought they could get it patented in the first place.

Does this mean you believe Apple should bit be allowed to patent an unlock screen?

Why did you call out Microsoft by itself? Microsoft also didn't even get the patent awarded unlike my example.

Windows had an unlock screen for years, granted it wasn't an unlocked screen design with a touch screen in mind, but touch screens didn't even exist when Windows 95/98/XP was out.

The patent examiner already has more prior art available than can reasonably be reviewed. A deluge of additional public-supplied prior art will just compound the needle in the haystack challenge.

Maybe the burden should then be upon the person applying for the patent to prove that the prior art does not apply. Why make the USPTO do the work the supposed inventor should do? If this is a truly novel invention, then show how it is different than what came before and how it improves upon what came before.

Would this just become a "Corp A" needs 51% of the crowd to vote okay to get a patent over "Corp B" thing? Would we start seeing ads to vote yes on patent #100981 and you'll get a free coke! (Or a free ride in a driverless taxi??)

I'm not saying any of that's gonna happen, just some coffee fueled imagination burn while at work

So instead of crowdsourcing the approval, why not make a crowdsourced review required before any patent litigation can start? Or even before you can threaten litigation?

So if I'm a small time guy who the Super Widget and MegaMax Corp. uses my invention and won't pay me royalties, I've got to wait for a bunch of third parties who have no interest in the Super Widdget to voluntarily out of their innate goodness and human decency to review my patent before I can get my case heard? Are you fucking kidding me?

Come on, Shavano. No need to get huffy. We can be civil here.

The process for litigating a patent is a very long one. Requiring a patent to be reviewed before it can be litigated isn't terribly different than how a lot of litigation cases go anyway.So yes, my suggestion is that any patent gets reviewed before it goes through its first lawsuit. How is that worse than Obama's proposal to do so every time you file a patent? It's certainly less overall work than reviewing every patent and relying on the goodness of peoples' hearts for *EVERY* patent.Final point - you would have to wait for a review period to end. If few people choose to review it, then it's to your benefit. Less review = less chance prior art will be found. And you'd only have to do it once, not once per lawsuit.

18 hours per patent examine is a big problem. A knee jerk solution is to charge more for patents to boost the number of examiners. The downside is this hurts the individual inventor and the small company. You could have a fee structure that increases based on the number of patents filed in the previousv18-24 for months, for example. However that may still disenfranchise the small inventor.

What I am getting at is we need a way to extract a greater sum of money from companies who benefit greatly from the patenting of ideas while not stifling and limiting the small and individual inventor.

I've said this many times before.

Make it expensive to get a patent REJECTED. Make it inexpensive to get a patent GRANTED.

This fixes the incentives for everyone. The incentives are right for the inventor of a truly novel invention. The incentives are right for the USPTO.

What's to keep large patent companies from gaming the system? Want your patent approved. Create a million fake accounts and have them all 'thumbs up' the patent. Want to stifle a competitor with a similar or better patent? Use your million fake accounts to 'thumbs down' the patent. See a cool patent that you want to steal? Thumbs down the patent, then after it fails, resubmit it as your own and thumbs up the patent.

Or, sponsor social media PR campaigns to get gullible people to vote the way you want them to on patents. Offer cheap prizes on social media (free $10 gift to Applebees, Red Lobster, Olive Garden, or any of these fine restaurants!") to people to vote the way you want them to.

On the internet, the very first question to ask about any new idea is, How will people, companies, and fraudsters abuse this?